Bombay HC: No Difference Between Abandoned & Orphaned Children

The Bombay High Court on Thursday slammed the Maharashtra government for its stand that benefits like reservation extended to orphaned children cannot be given to abandoned children.

A division bench of Justices GS Patel and Neela Gokhale observed that the Juvenile Justice (JJ) Act makes no distinction between an abandoned child and an orphan.

The order stated that, “We note that the definition of orphans includes children whose legal guardian is unable to care for the child. It should be noted that the act itself makes no distinction between adopted and orphan children.”

The Court was hearing a petition filed by the NEST India Foundation, a charitable trust, seeking the issuance of a certificate from the authorities declaring the two girls to be as abandoned children.

The bench ordered the Maharashtra government to issue certificates stating that two adult girls had been abandoned as children. These certificates will enable them to take advantage of government schemes, such as educational institution reservation.

Purnima Kantharia, a government Pleader, told the court that the Maharashtra government differentiated between orphaned and abandoned children, and thus the certificate could not be issued to abandoned children.

She reasoned that orphan had no one to look after them, whereas abandoned children had someone to look after them.

However, the Court was not convinced. It asked Kantharia to explain why the State thought an abandoned child to be more advantaged than an orphan child.

Refusing to accept this argument, Justice Patel stated. “There is no distinction, at least there is no moral distinction. There are benefits that orphans will get, but abandoned children will not? What according to you is the material distinction justifying or taking away the reservation to abandoned child? What is the logic? We expect far less bureaucracy from the state and far more concern from the state. These children are not responsible for their condition.”

The Court ruled that such a distinction is meaningless and contradicts the purpose of the Juvenile Justice Act.

The Court highlighted that it was the State’s responsibility to care for orphaned and abandoned children and ensure their well-being.

“It is worth noting that the definition of orphans includes children whose legal guardian is unable to care for the child. It should be noted that the Juvenile Justice Act itself does not distinguish between an abandoned child and an orphaned child,” the Court stated.

The court directed the Child Welfare Committee to decide the two girls’ application and listed the matter for further hearing on February 22, 2023.